This case is before us on remand from
the Oregon Supreme Court, which vacated our prior opinion, State v. Pratt,
227 Or App 364, 206 P3d 273 (2009) (Pratt II), in light of State v.
Lennon, 348 Or 148, 229 P3d 589 (2010). State v. Pratt, 348 Or 461,
234 P3d 983 (2010). Pratt II was also before us on remand from the
Supreme Court after that court vacated our prior decision, State v. Pratt,
205 Or App 559, 134 P3d 1053 (2006) (Pratt I), in light of State v.
Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as modified on recons,
344 Or 195, 179 P3d 673 (2008), and State v. Fults, 343 Or 515, 173 P3d
822 (2007). In Pratt II, we concluded that the trial court's imposition
of a durational departure sentence on the basis of judicial factfinding was
plain error, and we exercised our discretion to correct that error because we
could not say that there was no "legitimate debate" that a jury would
have found the same departure factor identified by the trial court. Pratt
II, 227 Or App at 367-68. In light of the Supreme Court's overriding
analysis in Lennon, we now affirm the trial court's imposition of the
durational departure sentence.

Defendant was convicted of four
counts of robbery in the first degree and one count of assault in the second
degree. The trial court imposed a durational departure sentence of 144 months'
imprisonment on one of the first-degree robbery counts, 90 months of which were
imposed pursuant to ORS 137.700. The court gave the following reasons for its
decision to impose a departure sentence:

"[O]n the Rob I, I am finding grounds to depart.
Persistent involvement in behavior that continues to be assaultive, that's when
we see [defendant]. * * * The level of violence is escalating -- of actual
damage and injury is escalating. That is of course concerning.

"He was on supervision at the time this
event happened, and not only was he on supervision, but he was on supervision
for another robbery. And he's shown himself so far -- and I'm talking about
behavior, not expression of willingness to change -- he has not been receptive
to interventions. And I have got to say I don't think he's going to get any
more help from the penitentiary than he had available through the Juvenile
Court system, and that hasn't worked. So there are departure grounds. * * *

"* * * * *

"[PROSECUTOR]: * * * Your Honor,
[defendant] mentioned something that I should bring up. When the Court went
through the departure factors, would you find that those departure factors,
each of them, would be sufficient to support the departure?

"[PROSECUTOR]: That alone. Escalation of
violence, on supervision for attempted robbery and not receptive to treatment.

"THE COURT: Yes, I think they all
are."

Because we considered it to be
dispositive, we confined our analysis in Pratt II to the departure
factor of defendant's probation status at the time he committed his current
offenses. Relying on our opinion in State v. Allen, 198 Or App 392, 396,
108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d
331 (2005), rev den, 342 Or 46 (2006), we explained that an upward
departure sentence based on a defendant's supervisory status "require[d]
further inferences about the malevolent quality of the offender and the failure
of his [supervisory] status to serve as an effective deterrent." We
concluded that, on the record before us, we could not say that there was
"no legitimate debate" that a trier of fact would have drawn that
inference. Accordingly, we remanded the case for resentencing. Pratt II,
227 Or App at 368.

As noted, this case is before us on
remand from the Supreme Court for reconsideration in light of that court's
opinion in Lennon. There, the court rejected our conclusion, based on Allen,
that the record must establish that there is no "legitimate debate"
that a trier of fact would draw the inference that a defendant possessed a
"malevolent quality." Lennon, 348 Or at 157. Although the
court did not consider as a departure factor the defendant's supervision status
at the time he committed his current offense, the court's analysis of the
"failure to deter" departure factor illuminates what we now
understand to be the proper analysis for the "supervision status"
departure factor. As the court explained:

"To find a failure to deter, the factfinder must infer
that a defendant's prior criminal sanctions should have deterred the defendant
from committing the current offense. Whether that inference follows from the
defendant's prior criminal sanctions will depend on such factors as the number
of past convictions or sanctions, when they occurred, and the kind of crimes
that the defendant committed. A finding that those past criminal sanctions
have not deterred a defendant from committing further crimes thus requires
something beyond a conclusion that a defendant has one or more criminal
convictions in his past. But a finding of a 'separate malevolent quality' is
not necessary. If the record supports the factual inference that a
defendant's prior criminal convictions or sanctions should have, but did not,
deter the defendant from committing his new offense or offenses, that factual
finding can, in a proper case, support a departure sentence."

Id. at 157 (first emphasis in original, second
emphasis added) (footnote omitted). Applying that principle in this case, we
conclude that the dispositive issue is whether defendant was on probation or
supervision when he committed his current offense. Here, defendant testified
that he had supported himself while on probation for two prior attempted
robberies by selling marijuana in downtown Portland; defendant also committed
his current offenses--violent robberies--while on probation. We conclude, in
light of defendant's testimony, that there is "no legitimate debate"
that a trier of fact would have found that defendant committed his current
offenses while on probation. Accordingly, although the trial court erred in
imposing the durational departure sentence on the basis of its own judicial
factfinding, we decline to exercise our discretion to correct that error.

That is not the end of our inquiry,
however, because, as we explained in Pratt II:

"[T]he trial court did not explicitly state that it was
relying on the departure factors that it found, either singly or in
combination, and therefore we assume that the court did not consider each
factor to be independently sufficient to support a departure. State v.
Wilson, 111 Or App 147, 826 P2d 1010 (1992)."

Pratt II, 227 Or App at 367.(1)
As noted, the trial court identified four departure factors: (1) persistent
involvement in similar offenses; (2) defendant's supervision status at the time
of the current offense; (3) defendant's escalating pattern of violence; and (4)
defendant's not having been receptive to treatment. As explained above, there
is no legitimate debate that defendant was on probation at the time of his
present offense. We also conclude that there is no legitimate debate that
defendant had been persistently involved in similar offenses. With regard to
the "persistent involvement" factor, we apply the Supreme Court's
analysis set out in State v. Bray, 342 Or 711, 724, 160 P3d 983 (2007).
There, the court held that "'[p]ersistent involvement in similar offenses'
presents a factual issue that * * * a defendant may insist that a jury find
beyond a reasonable doubt." As the court explained:

"In determining whether the record
establishes '[p]ersistent involvement in similar offenses,' a sentencing court
must do more than find that a defendant has two or more prior convictions for
similar offenses. The trier of fact must infer from the number and frequency of
those prior convictions whether the defendant's involvement in those offenses
is 'persistent'; that is, the trier of fact must determine whether the
defendant's involvement in similar offenses is sufficiently continuous or
recurring to say that it is 'persistent.'"

Id. Here, defendant testified that he had two prior
convictions for attempted robbery, both of which occurred in October 2000, and
for which defendant was on probation when he committed his present offense--a
violent robbery--in January 2002. On this record, we conclude that there is no
legitimate debate that a trier of fact would have drawn the inference of
persistency required by Bray. Accordingly, there is no legitimate
debate that a trier of fact would have found that defendant was persistently
involved in similar offenses.

As to the final two departure
factors, defendant's escalating pattern of violence and defendant not having
been receptive to treatment, we do not have a controlling analysis from the
Supreme Court, nor have we previously set out a framework for analyzing departures
based on those factors. However, the court's analysis in Lennon does
indicate that we need not conclude that a trier of fact would have drawn any
inferences beyond a finding of the departure factor itself. SeeLennon,
348 Or at 157. Thus, in determining whether there is a legitimate debate
regarding whether a trier of fact would have found the same departure factors
relied on by the trial court, we examine the strength of the evidence
supporting that departure fact. Cf.State v. Martina, 227 Or App
13, 16, 205 P3d 87, rev den, 346 Or 590 (2009) (finding no legitimate
debate that jury would have found that defendant was under supervision at the
time of his present crime where the defendant committed multiple violent
assaults and manslaughter while on probation for an assault conviction).

We conclude that there is no
legitimate debate that a trier of fact would have found that defendant's prior
criminal acts and convictions demonstrated an escalating pattern of violence.
Defendant committed his present crimes at age 19; at age 15, he threw a brick
at the head of another child; and at 17, he committed two attempted robberies.
Similarly, the record here also establishes that there is no legitimate debate
that a trier of fact would have found that defendant had not been receptive to
treatment. The trial court explained its reliance on that sentencing factor
when it stated:

"[H]e's shown himself so far -- and I'm talking about
behavior, not expression of willingness to change -- he has not been receptive
to interventions. And I have got to say I don't think he's going to get any
more help from the penitentiary than he had available through the Juvenile Court
system, and that hasn't worked. So there are departure grounds."

The pertinent evidence in the record with regard to that
factor came from Dr. Colistro, who evaluated defendant in order to ascertain
whether defendant was a "dangerous offender" under ORS 161.737. At
defendant's sentencing hearing, the prosecutor engaged Colistro in the following
colloquy:

"Q In reviewing the defendant's
history, did you note whether or not he had been given opportunities to address
his anger issues and his substance abuse issues and his cognitive difficulties
with treatment?

"A Yes.

"Q And was there anything in those
records regarding the defendant's amenability to treatment, his willingness to
engage in treatment?

"A Yes.

"Q And what was that?

"A His attitude generally has been
that he is not going to participate because he does not view himself as needing
that kind of program.

"Q Have you reviewed the defendant's
performance while under supervision?

"A Yes.

"* * * * *

"Q And what was that?

"A He consistently acts as if he's
not under supervision. As soon as he's back in the community, he resumes the
same lifestyle that he assumed prior to incarceration. He associates with the
same sorts of people, use of drugs and gets involved in the same sorts of
crimes."

In conclusion, there is no legitimate
debate that a trier of fact would have found each of the four departure factors
relied on by the trial court. Consequently, we affirm.

Affirmed.

1.The state
argues that this conclusion is erroneous, relying on the same language from the
sentencing colloquy set out above. We need not address the state's argument in
light of our conclusion below that no legitimate debate exists as to each of
the departure factors identified by the trial court.